Attorney General of New South Wales v Croker [2010] NSWSC 942 | Case summary

Attorney General of New South Wales v Croker [2010] NSWSC 942 | Case summary | Zoe

[5]

Attorney General v Bar-Mordecai [2005] NSWSC 142 Attorney General v Wentworth (1988) 14 NSWLR 481 Attorney General in and for the State of New South Wales v Klewer (No 3) [2010] NSWSC 9 Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; 226 CLR 256 Bizuneh v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 42 Cachia v Hanes [1994] HCA 14; 179 CLR 403 Croker v Angus & Coote (Holdings) Ltd [2002] NSWCTTT 186 Croker v Challoner [2000] NSWCA 186 Croker v Challoner [2000] NSWCA 342 Croker v Commissioner of Taxation [2001] NSWSC 188 Croker v Commissioner of Taxation [2002] FCA 1157 Croker v Commissioner of Taxation [2002] FCA 1432 Croker v Commissioner of Taxation [2002] FMCA 128 Croker v Commissioner of Taxation [2003] FCAFC 23 Croker v Commissioner of Taxation [2003] FCAFC 66 Croker v Commissioner of Taxation [2003] NSWSC 980 Croker v Commissioner of Taxation [2004] FCA 958 Croker v Commissioner of Taxation [2005] FCA 127 Croker v Commissioner of Taxation [2006] FCA 372 Croker v Commissioner of Taxation [2006] FCA 720 Croker v Commissioner of Taxation [2009] FCA 275 Croker v Commissioner of Taxation [2009] FCA 353 Croker v Commonwealth Bank of Australia [2000] FCA 279 Croker v Commonwealth Bank of Australia [2000] FCA 488 Croker v Commonwealth Bank of Australia [2000] FCA 722 Croker v Commonwealth of Australia [2005] NSWSC 994 Croker v Commonwealth of Australia [2007] FCA 831 Croker v Commonwealth of Australia [2007] FCA 1593 Croker v Commonwealth of Australia [2007] FMCA 1374 Croker v Commonwealth of Australia [2008] FCA 452 Croker v Commonwealth of Australia [2008] FCA 972 Croker v Department of Education and Training (NSW) [2009] FCA 350 Croker v Department of Education and Training (NSW)(No 2) [2009] FCA 351 Croker v Department of Education and Training (NSW) [2009] FCA 431 Croker v Department of Families and Community Services [2001] AATA 321 CASES CITED : Croker v Department of Families and Community Services [2000] FCA 269 Croker v Department of Families and Community Services [2000] FCA 883 Croker v Department of Families and Community Services [2000] FCA 1304 Croker v Deputy Registrar of the High Court [2003] FCAFC 280 Croker v Deputy Registrar of the High Court & Anor [2002] FCA 1117 Croker v Deputy Registrar of the High Court & Anor [2002] FCA 1260 Croker v Deputy Registrar of the High Court & Anor [2002] FCA 1343 Croker v Deputy Registrar of the High Court & Anor [2003] FCA 34 Croker v Deputy Registrar of the High Court & Anor [2003] FCA 628 Croker v Deputy Registrar of the High Court & Anor [2003] FCA 681 Croker v Ewen; Croker v Challoner [2000] NSWCA 186 Croker v Human Rights and Equal Opportunity Commission [1998] AATA 160 Croker v Hutchinson 3G [2005] NSWSC 733 Croker v Hutchinson 3G [2005] NSWSC 1242 Croker v Perks [1999] NSWSC 296 Croker v Perks [1999] NSWSC 752 Croker v Philips Electronics Australia Ltd & Ors [2000] FCA 991 Croker v Philips Electronics & Ors [2000] FCA 1516 Croker v Philips Electronics & Ors [2000] FCA 1731 Croker v Philips Electronics & Ors [2000] FCA 1935 Croker v Philips Electronics & Ors [2002] FCA 1393 Croker v Philips Electronics & Ors [2002] FCA 1454 Croker v Philips Electronics & Ors [2003] FCAFC 43 Croker v Secretary, Department of Employment and Workplace Relations [2006] FCA 1257 Croker v Secretary, Department of Employment and Workplace Relations [2006] FCA 1447 Croker v Secretary, Department of Employment and Workplace Relations [2007] AATA 1224 Croker v Secretary, Department of Employment and Workplace Relations [2007] FCA 1635 Croker v Secretary, Department of Employment and Workplace Relations [2008] FCA 340 Croker v State of NSW & Anor [2003] FMCA 181 Croker v Sydney Institute of TAFE (State of NSW) [2003] FCA 942 Croker v Sydney Institute of TAFE (State of NSW) [2003] FCA 1159 Croker v TAFE Commission [2009] FCA 1024 Hambleton & Anor v Labaj [2010] QSC 124 Jones v Cusack [1992] HCA 40; (1992) 109 ALR 313 National Australia Bank Limited v Freeman [2006] QSC 086 Re Croker and Department of Employment and Workplace Relations [2006] AATA 536

[13]

6 In determining whether a person was a "vexatious litigant" under the now repealed s 84 of the Supreme Court Act 1970, the Court's consideration was limited to legal proceedings instituted in courts in New South Wales. Reference to proceedings in tribunals in New South Wales or courts or tribunals in other jurisdictions was limited, in an appropriate case, to determining whether the discretion to declare a person a vexatious litigant should be exercised (see Attorney General in and for the State of New South Wales v Klewer (No 3) [2010] NSWSC 9 at [286]-[288]). This is to be contrasted with the position under the Vexatious Proceedings Act, where s 8(2) expressly provides that an authorised court may have regard to proceedings in any Australian court or tribunal, and orders made by any Australian court or tribunal (including proceedings instituted or conducted and orders made before the commencement of the section). The defendant's attention was drawn to the operation of the Act and in particular, the express terms of s 8(2). He did not withdraw his objection but advanced no further submissions of any relevance. 7 I admitted into evidence all of the decisions annexed to Mr Baril's affidavit on the express basis that although some proceedings did not qualify as vexatious proceedings, as defined in s 6 of the Act, the full course of the defendant's litigation history gave context to specific sets of proceedings grouped under various subject headings, the very great majority of which were relied upon by the plaintiff as vexatious proceedings. 8 The plaintiff also relied upon a further affidavit of Aaron Baril of 20 July 2010 without objection. 9 The defendant relied upon an affidavit sworn by him on 15 April 2010 and a document entitled "Index to a Bundle of Documents" annexed to that affidavit. The bundle included the Model Litigant Policy extracted from the NSW Legal Services Direction 2005, correspondence with the Commissioner of Taxation of June 2010 concerning proceedings that were ultimately dismissed in 2009, and a letter forwarded to the Commonwealth Attorney General alleging contraventions of the NSW Legal Services Direction 2005 by the Commonwealth of Australia also in respect to various proceedings that have been dismissed. None of this material had any bearing on the issues that fall to be considered on this application.

[17]

15 Section 5 of the Act defines "institute", in relation to proceedings, to include: "(a) for civil proceedings - the taking of a step or the making of an application that may be necessary before proceedings can be started against or in relation to a party, and (b) for proceedings before a tribunal - the taking of a step or the making of an application that may be necessary before proceedings can be started before the tribunal, and (c) for criminal proceedings - the making of a complaint or the obtaining of a warrant for the arrest of an alleged offender, and (d) for civil or criminal proceedings or proceedings before a tribunal - the taking of a step or the making of an application that may be necessary to start an appeal in relation to the proceedings or to a decision made in the course of the proceedings." The plaintiff placed particular reliance on ss 5(a), (b) and (d). 16 A "vexatious proceeding" is defined in s 6 of the Act to include: "(a) proceedings that are an abuse of the process of a court or tribunal, and (b) proceedings instituted to harass or annoy, to cause delay or detriment, or for another wrongful purpose, and (c) proceedings instituted or pursued without reasonable ground, and (d) proceedings conducted in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose." 17 The plaintiff placed particular reliance on the definition of vexatious proceedings in ss 6(a) and (c), namely that the defendant instituted proceedings in various state and federal courts and various tribunals that were an abuse of the processes of those courts and tribunals, and that he instituted or pursued proceedings in those forums without reasonable ground. In Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; 226 CLR 256 at [9] Gleeson, Gummow, Hayne and Crennan JJ observed that what amounts to an abuse of court process is insusceptible of a formulation comprising closed categories. That said, the concept of abuse of process is often relied upon in the exercise of the inherent jurisdiction of superior courts to stay proceedings and was frequently used to ground orders made under s 84 of the Supreme Court Act. An abuse of process includes, by illustration rather than by definition, the following examples: i. The pursuit of proceedings that have no prospect of success, or no real prospect of resulting in a remedy of any substance, but which involve unjustifiable expense or use of judicial resources; ii. The pursuit of concurrent proceedings for substantially the same relief, or the pursuit of fresh proceedings after unremedied default in previous proceedings. "Frequently"

[23]

26 The plaintiff submitted, however, that on a review of the defendant's litigation history distinct and repeated patterns of conduct are revealed. For example, one pattern which is said to emerge clearly in at least two separate sets of proceedings, (namely "the tenancy proceedings" and "the cufflinks proceedings"), is that in the course of pursuing substantive relief against one party, the defendant instituted collateral proceedings against a third party, often pursuing the collateral proceedings long after the resolution of the primary proceedings (in each case adverse to him). Another pattern of conduct identified by the plaintiff is the pursuit of relief which is grossly disproportionate to the wrong the defendant claimed to have suffered (relief which becomes more elaborate in the process of seeking appellate review), and numerous instances where the claim is misconceived and sometimes without any legal basis at all. 27 Despite the clearly articulated decisions of magistrates, tribunal members and single judges of the District Court and Supreme Court when proceedings were dismissed, the plaintiff points out that the defendant has invariably appealed (or sought leave to appeal) from those decisions, including multiple applications to the High Court for a grant of special leave. In this way he has shown, or appears to have shown, a blatant disregard of the need for appellate review to be confined to correcting errors of law and no concern at the unwarranted waste of time and judicial resources in seeking relief on other grounds. In some instances the plaintiff submitted that it is open to conclude that the relief he has sought was for collateral purposes. The Tenancy Proceedings 28 In November 1998 the defendant brought an action in the Residential Tenancies Tribunal (RTT) (proceedings number 98/36532) for an order to prevent what he claimed to be his unlawful eviction. In December 1998 the RTT dismissed the application, having found that the subject premises operated as a boarding house and that it was without jurisdiction under the Residential Tenancies Act 1987 in those circumstances. In December 1998 the defendant commenced fresh proceedings in the RTT (proceedings number 98/39116), this time seeking orders that the Tribunal's earlier decision be set aside. Deputy Registrar Haertsch dismissed the application on the basis that s 110 of the Residential Tenancies Act did not provide for a review of the original decision. He noted, however, that s 107 of the Act provided for an appeal to the Supreme Court from a decision of the RTT on a question of law. (The plaintiff does not rely on either the initial application or the appeal from the initial RTT decision as a vexatious proceeding.) 29 The defendant appealed to this Court seeking orders that the RTT's order dismissing the application for want of jurisdiction be set aside, that personal property be returned to him, and that he be awarded damages in the amount of $100,000 because of the interruption to his law studies. In July 1999 Barr J dismissed the summons with costs. His Honour confirmed the jurisdictional limit identified by the RTT in the original application and refused the other relief sought by summons (Croker v Perks [1999] NSWSC 752). The defendant filed a notice of appeal in the Court of Appeal (proceedings number 40556/99) against the decision of Barr J. In November 1999 the Registrar of the Court of Appeal dismissed the appeal as incompetent, the defendant having failed to apply for leave to appeal from the decision of Barr J or for an extension of time in which to seek leave. 30 Prior to the appeal from the RTT being heard and determined by Barr J, the defendant issued a subpoena to the New South Wales Police Service seeking production of records relating to the attendance of police at the premises from which he was evicted, and the disorderly use of those premises. In April 1999 (proceedings number 3003/99) Adams J dismissed the defendant's notice of motion in which he sought an order that the New South Wales Police Service comply with the subpoena. His Honour was satisfied that the material sought lacked any legitimate forensic purpose since it related to the private affairs of persons unconnected with the litigation. The defendant did not attend the hearing of the notice of motion despite being present when the matter was fixed for hearing. (The notice of motion is not relied upon as a vexatious proceeding.) 31 Later in April 1999 the defendant commenced proceedings in the Court of Appeal (proceedings number 40303/99) seeking leave to appeal from the decision of Adams J. In November 1999 Handley JA dismissed the defendant's summons (the matter being dealt with, by consent, on the papers in chambers). 32 In May 2000, after the Court of Appeal dismissed the appeal from Barr J, the defendant sought special leave to appeal from the decision of Handley JA. Gaudron and Gummow JJ refused leave to appeal (HCA Trans S/236/1999) stating that: "… there is no reason to doubt the correctness of the decision of the New South Wales Court of Appeal". 33 In addition to the proceedings the defendant instituted against the Commissioner of Police, and also prior to Barr J hearing the appeal from the decision of the RTT, the defendant issued a subpoena to the Commissioner of Taxation seeking production of tax and employment records of those living at the premises from which he was evicted. By notice of motion filed in February 1999 the Commissioner objected to production claiming statutory immunity under s 16(3) of the Income Tax Assessment Act 1936 (Cth) and sought an order that the subpoena be set aside. In April 1999 Dunford J granted the orders sought by the Commissioner and dismissed a notice of motion filed by the defendant in March 1999 seeking an order that the Commissioner be directed to comply with the subpoena. His Honour ordered the defendant to pay the Commissioner's costs. In setting aside the subpoena, Dunford J referred expressly to the limited exception to the statutory immunity in s 16(3), an exception which is available only where production is necessary for the purpose of carrying into effect provisions of the Income Tax Assessment Act, and that the defendant had failed to demonstrate that the exception had any application to the proceedings at that time pending in the Supreme Court on appeal from the RTT (Croker v Perks [1999] NSWSC 296 at [6]-[8]). (This notice of motion is not relied upon as a vexatious proceeding.) 34 In April 1999 the defendant commenced proceedings in the Court of Appeal (proceedings number 40247/99) for leave to appeal from the decision of Dunford J. In September 1999 Sheller and Stein JJA dismissed the application for leave with costs, on the basis that the appeal had no prospects of success. In March 2000 the defendant sought special leave to appeal from the decision of Sheller and Stein JJA. Gummow and Kirby JJ refused leave to appeal, and ordered costs against the defendant (HCA Trans S186/99), noting that: "Any appeal would enjoy no prospects of success, given the long-established body of authority respecting the operation of section 16 of the Income Tax Assessment Act which is referred to at first instance by Justice Dunford and later by reference in the judgment of Justice Sheller in the New South Wales Court of Appeal. Accordingly special leave to appeal is refused."

[24]

35 By notice of motion filed in March 2001 the defendant challenged the cost assessor's determination in respect of the proceedings before Dunford J and the proceedings in the Court of Appeal in which costs were awarded in favour of the Commissioner of Taxation. He also sought an order that the Commissioner pay damages for intimidation. Master Malpass was not persuaded that there was any basis for disturbing the cost assessor's determination and dismissed the defendant's notice of motion with costs (Croker v Commissioner of Taxation [2001] NSWSC 188). 36 In July 2001 the defendant filed a summons in the Court of Appeal (proceedings number 40272/2001) seeking leave to appeal from the decision of Master Malpass. In November 2001 Priestley and Heydon JJA dismissed the summons with costs. A week later, the defendant filed a notice of motion seeking an order from the Registrar that the Full Court of the Supreme Court be convened to hear an appeal from the decision of Priestley and Heydon JJA. The notice of motion also sought $200,000 in damages. In February 2002 the notice of motion was dismissed. 37 After the costs assessment process was complete, the Commissioner of Taxation issued bankruptcy notices by reason of the defendant's persistent failure to meet the outstanding costs orders. 38 In May 2002 the defendant challenged the bankruptcy notices in the Federal Magistrates Court. Registrar Hedge set aside the bankruptcy notices and ordered the Commissioner to pay the defendant's costs in the amount of $100. In June 2002 the defendant applied for an extension of time to review the Registrar's decision on the costs component. He also applied for an order restraining the Commissioner from issuing a further bankruptcy notice and damages in the amount of $350,000. 39 Driver FCM dismissed the application, with costs, on the basis that it failed to disclose an arguable case for relief. He went on to say that he considered it highly "improbable" that he would be persuaded to entertain a damages application despite the Court's accrued jurisdiction (Croker v Commissioner of Taxation [2002] FMCA 128 at [10]). 40 In November 2002 the defendant appealed to the Federal Court from both the quantum of the original costs order in his favour made by Registrar Hedge in May and the decision by Driver FCM refusing an extension of time within which to review the decision of Registrar Hedge on other grounds. On 12 November 2002 Madgwick J dismissed the appeal and ordered the defendant to pay the Commissioner's costs (Croker v Commissioner of Taxation [2002] FCA 1432). 41 The costs order that issued in favour of the Commissioner of Taxation after the special leave application was dismissed in March 2000 (HCA Trans S186/99 referred to above at [34]), was registered as a civil judgment in the Local Court pursuant to s 41 of the Bankruptcy Act 1966 (Cth) (proceedings number 5908 of 2001) and ultimately grounded the issue of a fresh bankruptcy notice. In September 2002 the defendant brought an application in the Federal Court to set that notice aside. Moore J found that the Commissioner had obtained judgment against the defendant in the Local Court in a manner that was legally flawed because the High Court of Australia Act 1979 (Cth) and Service and Execution of Process Act 1992 (Cth) did not operate to provide a mechanism for the enforcement of High Court judgments by a process of registration in a State Court. His Honour was not, however, prepared to set aside the bankruptcy notice in circumstances where he was otherwise satisfied that the debt due to the Commissioner (less the Local Court filing fee) was proved. Accordingly, the defendant's application was dismissed with costs (Croker v Commissioner of Taxation [2002] FCA 1157). 42 In February 2003 the defendant lodged an appeal from that determination to the Full Court of the Federal Court (Croker v Commissioner of Taxation [2003] FCAFC 23). The appeal was allowed on the basis that Moore J had erred by regarding the "purported registration" of a certificate of taxation as a judgment which was effective until such time as it was set aside. The Court set aside the bankruptcy notice. Neither the application before Moore J or the appeal were relied upon as vexatious proceedings. 43 In March 2003 the defendant filed a notice of motion in the Full Federal Court seeking a costs order in his favour in respect of the proceedings before Moore J (Croker v Commissioner of Taxation [2003] FCAFC 66). Lee, Whitlam and Jacobson JJ dismissed the motion with costs on the basis that the defendant, as a self-represented litigant had failed to prove any disbursements justifying the making of a costs order. The Court stated at [4]: "There is plain authority (see Cachia v Hanes (1994) 179 CLR 403) that time and trouble spent in preparation of one's own litigation is not recompensable by a costs order in favour of a person who is not a legal practitioner. The Court has done no more than follow that precedent…" 44 In December 2003 the defendant brought two applications for special leave to appeal, the first from the decision of Madgwick J in November 2002 refusing a review of the $100 costs order made by the Registrar Hedge in May 2002 in respect of the first bankruptcy notice ([2002] FCA 1432), and the second from the Full Court's decision to refuse him costs in respect of Moore J's decision to set aside the second bankruptcy notice ([2003] FCAFC 66). He sought special leave on the basis that litigants in person who are successful should receive their costs "on an equity ground (sic)". In the hearing before Gummow and Heydon JJ the defendant submitted that Registrar Hedge was in error when he ordered $100 for costs in that matter on the basis that he was a self-represented litigant because he had a paralegal degree. In support of this submission he cited an Australian Law Reform Commission report issued after the High Court's decision in Cachia v Hanes [1994] HCA 14; 179 CLR 403 which, he submitted, demonstrated support for the rights of litigants in person to recover their costs. Gummow and Heydon JJ refused special leave ([2003] HCA Trans 542) stating: "We are not satisfied that there are sufficient prospects of success in any application to reopen the decision of this Court in 1994 in Cachia v Hanes 179 CLR 403, nor in respect of either application for special leave are there otherwise reasonable prospects of success…" 45 I note the plaintiff's concession that the defendant's successful challenges to the first and second bankruptcy notices issued by the Commissioner are not relied upon as being vexatious proceedings, at least to the extent that the defendant was successful in having the notices set aside in May 2002 in the Federal Magistrates Court proceedings and in February 2003 in the Full Court proceedings [2003] FCAFC 23. While the same may not necessarily be true of his persistent efforts to recover costs in excess of $100 in the Federal Magistrates Court, the Federal Court, the Full Federal Court and his special leave application to the High Court, since they are not relied upon by the plaintiff I refer to them only to complete the defendant's litigation history in respect of the Tenancy proceedings. They also provide the relevant background to a further set of proceedings instituted against the Commissioner of Taxation which are also collateral to the proceedings in the RTT in 1998.

[26]

47 In June 2004 the defendant sought leave to appeal from Levine J's decision to the Court of Appeal. Giles and Hodgson JJA dismissed the application with costs, noting that Levine J's decision was plainly correct (proceedings number 41082 of 2003). 48 In March 2005 the defendant sought special leave to appeal. Gummow and Kirby JJ refused leave with costs ([2005] HCA Trans 137), stating: "There is no reason to doubt the correctness of the decision of the primary judge or the Court of Appeal. The further complaint in the special leave application asserting the invalidity of the Defamation Act 1974 (NSW) has no substance. Special leave is refused with costs." 49 In October 2004 the Commissioner of Taxation issued the defendant with a third bankruptcy notice, this time arising from the costs order made by Levine J in the defamation proceedings. In November 2004 the defendant filed an application in the Federal Court to set aside the bankruptcy notice. He also sought an award of damages in the amount of $1 million in "compensatory, exemplary and notional (sic) damages". Hely J found that while the costs were assessed at $12,972.30, the process of registration of the certificate at the Local Court resulted in an additional cost, taking the total debt to $13,035.30. The bankruptcy notice therefore overstated the quantum of debt owed by $63. It was on this basis that Hely J set aside the notice (which is not relied upon as a vexatious proceeding) (Croker v Commissioner of Taxation [2005] FCA 127 at [9]). The defendant's claim for damages was dismissed and his Honour made no order for costs. At [19] he said: "The nature of this claim is not particularised in the application … Mr Croker's affidavit provides very little guidance as to the basis of the claim, although reference is made to a claim against the Commissioner for compensation for detriment caused by defective administration. The defective administration is presumably that the Commissioner has now issued three bankruptcy notices against Mr Croker, each of which has been set aside … Such a claim does not give rise to a cause of action known to the law".

[28]

51 In August 2004 the defendant filed a notice of motion seeking an order dispensing with the requirement of leave to appeal from the decision of Branson J. Emmett J dismissed the application. In his Honour's view, were leave to be granted, there was no prospect of any success on the hearing of any appeal (Croker v Commissioner of Taxation [2004] FCA 958). In so far as concerned the defendant's claim for damages, his Honour noted at [4]: "… Mr Croker does not suggest he has a cause of action under the ADJR Act. It is not clear at all precisely what claim he makes for damages. If he does have a claim for damages for negligence against the Commissioner, the appropriate course is to commence a proceeding by way of application and statement of claim". 52 In July 2005 the defendant instituted fresh proceedings against the Commissioner of Taxation in the Federal Court arising out of the three bankruptcy notices that were ultimately set aside (in May 2002 in the Federal Magistrates Court and in February 2003 in the Full Court [2003] FCAFC 23). On this occasion he alleged "tortuous [sic] interference" with his constitutional rights and sought $10 million in damages. Cowdroy J held that the statement of claim did not disclose any reasonable cause of action and dismissed the application with costs (Croker v Commissioner of Taxation [2006] FCA 372 at [28]). 53 In June 2006 Edmonds J refused leave to appeal from the decision of Cowdroy J, and ordered the defendant to pay the Commissioner's costs on the basis that the application contained no arguable ground of appeal (Croker v Commissioner of Taxation [2006] FCA 720). 54 In January 2009 the defendant instituted further proceedings against the Commissioner of Taxation in the Federal Court, again seeking an award of damages, but pleading misfeasance in public office. 55 In March 2009 Moore J dismissed the proceedings on the basis that they were of the same character as those heard and determined by Cowdroy J in 2006. He ordered the defendant to pay the Commissioner's costs on an indemnity basis (Croker v Commissioner of Taxation [2009] FCA 275). His Honour said at [4]: "… It should have been apparent to Mr Croker that the proceedings were likely to result in them being dismissed. That matter was adverted to at a directions hearing, as was the issue of Mr Croker being potentially liable not only to pay the respondent's costs but that they be paid on an indemnity basis. It should have been apparent to Mr Croker that his case was, in effect, hopeless, and in those circumstances I propose to order costs on an indemnity basis, and I so order".

[30]

The Dental Proceedings 58 In December 1998 (less than a month after having instituted the proceedings in the Residential Tenancies Tribunal) the defendant instituted proceedings in the District Court seeking $100,000 in damages from his dentist, against whom he alleged professional negligence. The defendant sought damages for "restoration of the dental work, pain and suffering, forced procrastination of study, social life, stress and other heads of damage" (proceedings number 9108/988). In August 1999 Sinclair ADCJ struck out the statement of claim for want of prosecution, inter alia, on the basis that the defendant had filed an affidavit that was largely if not wholly irrelevant, and because of his failure to respond to a request for particulars. His Honour ordered the defendant to pay the costs of the proceedings. 59 In September 1999 the defendant filed a summons in the common law division of this Court (proceedings number 12172/99) seeking an order setting aside the decision of Sinclair ADCJ. In October 1999 Hidden J struck out the application on the basis that he had no jurisdiction to hear the matter. His Honour made no order as to costs. Although this proceeding is not relied on by the plaintiff as a vexatious proceeding, I assume because the defendant claimed to have been confused by an ambiguity in the District Court Act 1973, that it is included as part of the defendant's litigation history given that the plaintiff does rely on the application in July 2000 for an extension of time within which to appeal to the Court of Appeal against the order of Sinclair ADCJ as a vexatious proceeding. 60 On the application for leave to appeal the defendant claimed that Sinclair ADCJ had removed documents from the court file. In the same proceedings he sought a review of a direction by the Registrar that he provide an address for service in compliance with the Supreme Court Rules. Giles JA refused leave to extend time in which to appeal, dismissed the application for a review of the Registrar's decision and affirmed the decision of Sinclair ADCJ, noting that the defendant's proposed grounds of appeal made no sense (Croker v Challoner [2000] NSWCA 186). 61 In November 2000 the defendant filed a notice of motion in the Court of Appeal seeking a review of the decision of Giles JA. Mason P, Powell and Fitzgerald JJA dismissed the notice of motion on the basis that the defendant had failed to demonstrate that Giles JA misdirected himself as to any point of principle or in the exercise of discretion (Croker v Challoner [2000] NSWCA 342 at [31]). At [5] Powell JA said: "…Despite the fact that … Mr Croker claimed to be a "student at law, Sydney Institute of Technology", the form of that Statement of Claim demonstrates clearly that Mr Croker has little, if any, acquaintance with, or understanding of, proper litigious practice and procedure and, still less, of the rules of pleading - the form of the Statement of Claim makes it well nigh incomprehensible, a fact which makes it impossible to discern what was the nature of the claim - in particular, whether it was based on a contract, or in negligence, or on some other cause of action …" 62 In so far as the submissions filed on the appeal were concerned, his Honour observed: "[29] As one might expect, the Written Submissions which were filed by Mr Croker, a substantial part of which submissions was directed to the order made by Giles JA dismissing Mr Croker's Notice of Motion, were well nigh incomprehensible and failed completely to address the issues required to be dealt with on an application such as this; nor were the submissions made by Mr Croker on the hearing of the application directed to those issues." 63 In December 2000 the defendant filed an application for special leave to appeal from the decision of the Court of Appeal. The application was filed out of time. The Deputy Registrar of the High Court granted an extension of time, with which the defendant failed to comply. In September 2001 the application was deemed to be abandoned and was dismissed. 64 In October 2001 the defendant filed an application in the Federal Court seeking relief under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act") and the Judiciary Act 1903 (Cth), claiming, inter alia, a writ of certiorari and a writ of mandamus to compel the Deputy Registrar of the High Court to set a date for the hearing of the appeal from the Court of Appeal. He also sought an award of damages exceeding $1 million. 65 The hearing of the application commenced in December 2001 before Allsop J. In 2002 his Honour made orders under the ADJR Act reducing the cost of photocopying documents produced on subpoena to 50 cents per page. In September 2002 the defendant sought leave to appeal from that order on the basis that, because he was in receipt of a disability pension, he should be exempt from all photocopying costs. Beaumont J adjourned the matter until the defendant was able to demonstrate a need to photocopy the subpoenaed material (Croker v Deputy Registrar of the High Court & Anor [2002] FCA 1117). When the interlocutory proceedings recommenced before Beaumont J in October 2002 the defendant failed again to sufficiently demonstrate any need to pursue the proposed appeal from the decision of Allsop J on the issue of the photocopying fees. However, on the basis of evidence of the defendant's medical condition, Beaumont J allowed him an opportunity to apply for a variation or discharge of the order (Croker v Deputy Registrar of the High Court & Anor [2002] FCA 1260). Later in October 2002, the defendant came before Beaumont J a third time (Croker v Deputy Registrar of the High Court & Anor [2002] FCA 1343), on this occasion seeking photocopy access to documents he claimed were relevant to two questions in the proceedings under the ADJR Act, namely whether there was a practice adopted by the High Court Registry contrary to the approach adopted by the Deputy Registrar, and whether the Deputy Registrar was biased. In refusing the defendant's motion to vary the orders made by Allsop J, Beaumont J stated: "[3]… Significantly, in my view, Mr Croker has made no effort on the several occasions the matter has now been before me to seek to establish that either of these two arguments have any real prospects of success. [4] In any event, as I have earlier said, it seems to me any activation of the appellant process at this stage of the principal proceedings would be premature. It is clear that the trial Judge has been actively engaged in the management of the litigation in all its dimensions, including the present question of putting in place machinery to enable the applicant to use the documentation he seeks to rely upon at the final hearing of the principal proceedings". 66 On 3 February 2003 Allsop J dismissed the substantive application under both the ADJR Act and the Judiciary Act (Croker v Deputy Registrar of the High Court & Anor [2003] FCA 34 at [11]). His Honour records the defendant as submitting that: "… without particulars or any coherent explanation, that the 'act of changing sole carriage' of the proceeding from Deputy Registrar Carlsund to Deputy Registrar Grey was an act of bad faith. It is not said by whom. The assertion is baseless and should not have been made, even by a litigant in person".

[35]

74 In July 2005 the defendant filed a summons in the Common Law Division of this Court seeking orders setting aside the order of the CTTT dismissing his application for want of jurisdiction. In October 2005 Hoeben J confirmed the CTTT's decision that the Commonwealth was not bound by either the Consumer Trader and Tenancy Tribunal Act, the Consumer Claims Act or the Fair Trading Act 1987. The summons was dismissed with costs (Croker v Commonwealth of Australia [2005] NSWSC 994). 75 In December 2005 the defendant sought to issue a writ of summons against the Commonwealth of Australia in the High Court for unspecified relief in respect of the replacement cufflinks. Kirby J directed that the Registrar refuse to issue the writ without leave of the Court in accordance with r 41.10 of the High Court Rules 2004. In March 2006 Heydon J refused leave for the defendant to issue a writ on basis that the proposed proceedings were "an abuse of process, frivolous and vexatious" ([2006] HCA Trans 75). In November 2006 Hayne and Crennan JJ refused the defendant leave to appeal from the decision of Heydon J, noting that his "written submissions raise no question of law which warrants consideration" ([2006] HCA Trans 599). 76 In December 2006 the defendant filed an application against the Commonwealth of Australia in the Federal Court in respect of the cufflinks (proceedings number NSD2478/06) which Stone J transferred to the Federal Magistrates Court. In March 2007 Lloyd-Jones FCM ordered the defendant to produce documents relating to his income and financial resources, together with other documents concerning his proceedings in other courts or tribunals, and all documents recording costs orders made against him (Croker v Commonwealth of Australia proceedings number SYG548/07). In May 2007 the defendant filed an application in the Federal Court for leave to appeal from those orders on the basis that compliance would result in substantial injustice. Edmonds J refused leave to appeal on the basis that the defendant failed to demonstrate that the Magistrate's discretion had miscarried (Croker v Commonwealth of Australia [2007] FCA 831 at [5]). 77 Following the refusal of the defendant's application for leave to appeal, the Commonwealth of Australia applied for summary judgment or enforcement of the order for security for costs. It also sought an order that the defendant not be permitted to continue the proceedings in the Federal Magistrates Court or any further proceedings without leave of the Court pursuant to r 13.11 of the Federal Magistrate Court Rules 2001 (Cth). In August 2007 (Croker v Commonwealth of Australia [2007] FMCA 1374) Lloyd-Jones FCM dismissed the defendant's application for a stay of the proceedings before Edmonds J pending the outcome of his application to the High Court and granted the Commonwealth's application by ordering the defendant to provide security for costs in the sum of $30,000 by 11 September 2007. Lloyd-Jones FCM also made the following observations: "[6]… Mr Croker has since commenced a number of proceedings across multiple jurisdictions in relation to the alleged defective cufflinks. None of these applications have been successful. … [49]… The application to this Court was filed by an individual with propensity for suing the Commonwealth and for litigation generally. In the circumstances, the Commonwealth ought to have some protection due to its having to defend multiple claims."

[37]

79 The defendant failed to comply with the security for costs order. On 31 October 2007 FM Lloyd-Jones stayed the proceedings in the Federal Magistrates Court ([2007] FMCA 1374) pending payment for security for costs and ordered that the proceedings be dismissed if security was not paid by 5.00pm on 16 November 2007. The defendant failed to comply with the order. On 6 March 2008 the proceedings were dismissed with costs. 80 In December 2007 the defendant sought to revive his initial application to the Federal Court (proceedings number NSD2478/06) which Stone J transferred to the Federal Magistrates Court (referred to above at [76]). The application relied upon the same facts as the first application but this time sought $200,000 in "compensatory, punitive, aggravated and exemplary damages" for "wrongfully defending a claim, breach of warranty, false or misleading representations and misleading and deceptive conduct". In April 2008 Cowdroy J struck out the application (Croker v Commonwealth of Australia [2008] FCA 452), noting that: "[58]… the Court is mindful that the power to strike out proceedings should be used only in exceptional cases where the facts disclose a clear case of abuse… [59] The current proceedings can be so categorised. They have been instituted solely for the purpose of circumventing the orders made in SYG 548 of 2007. An applicant is not entitled to commence fresh proceedings because orders are made in earlier proceedings with which that applicant disagrees. Such conduct obstructs the administration of justice and accordingly constitutes an abuse of process. … [61] Further, the Court is mindful of the frivolous nature of the claim and of the fact that the respondent has been put to expense out of all proportion to any damages that could realistically be awarded in Mr Croker's favour. Mr Croker has refused an open offer of settlement made at the conclusion of this hearing … As Mr Croker has been unable to quantify any loss, the offer was clearly reasonable … Although it is not necessary to do so, the Court considers that grounds exist for the proceedings to be dismissed … as vexatious and frivolous…" 81 In May 2008 the defendant made an application for leave to extend the time for filing an application for leave to appeal against the decision of Cowdroy J. Rares J ruled that there was no reason to doubt that Cowdroy J was correct in characterising the proceedings as an abuse of court process and made orders restricting any further proceedings in the Federal Court or Federal Magistrates Court relating to the cufflinks dispute (Croker v Commonwealth of Australia [2008] FCA 972). His Honour stated at [6]: "The absurdity of this claim is self-evident from the damages sought, the basis for which Mr Croker never particularised … The proceedings had, on their face, a demonstration of their vexatiousness and absurdity".

[39]

"[27]… these proceedings had no legitimate forensic purpose and were the plainest abuse of the process of the Court … [28]… I am satisfied that the vexatiousness of the proceedings and their abusive nature warrants an order that Mr Croker pay the Commonwealth's costs taxed on an indemnity basis". 83 In December 2008 a costs assessment was issued consequent upon costs orders made in this Court by Hoeben J in October 2005 (Croker v Commonwealth of Australia [2005] NSWSC 994) when his Honour dismissed the defendant's summons seeking to set aside orders of the CTTT referred to above at [74]. 84 In February 2009 the defendant filed a summons in the District Court seeking leave to appeal from the decision of the costs assessor. In April 2009 (proceedings number 439/09) Balla DCJ struck out the application on the basis that it was "frivolous, vexatious and an abuse of process". She noted that, properly understood, the defendant was in fact challenging the costs order itself, as distinct from decision of the costs assessor. Having acknowledged that the proceedings were in fact yet another attempt to revisit the plaintiff's grievance against the Commonwealth in respect of a pair of cufflinks in circumstances where the issue has already been finally determined by Rares J in the Federal Court ([2008] FCA 972), her Honour nevertheless made the following comments on the question of costs: "The plaintiff says he should not pay any costs because the defendant is a model litigant and that this is public interest litigation. I do not accept these submissions. The defendant is prima facie entitled to a costs order as it was successful and a model litigant is not required to always bear its own costs. In addition I decline to find that this can be characterised as public interest litigation. It is an action by the plaintiff for compensation arising out of a commercial transaction with the defendant. The fact that the story has been aired on television and that the defendant is the Commonwealth of Australia does not transform his claim for compensation into public interest litigation". Her Honour also ordered that the plaintiff pay the defendant's costs of the proceedings on an indemnity basis. 85 In the proceedings before me (despite initially disputing the legitimacy of Judge Balla's decision on the basis of a typographical error in the parties' names recorded on the judgment), the defendant informed me that he intended to pursue, by all means available to him, what he claims to be his legal rights in respect of the cufflinks.

[40]

The Credit Proceedings 86 In July 1999 (at a time when the tenancy proceedings in the CTTT and dental proceedings in the District Court had commenced) the defendant instituted proceedings in the Federal Court against the Commonwealth Bank of Australia alleging, inter alia, "harsh and oppressive conduct, undue influence, and false and misleading conduct". The claim arose in circumstances where the defendant applied to increase his credit limit, and then borrowed money up to the increased limit, but was unable to meet his obligations as borrower. 87 In March 2000 (Croker v Commonwealth Bank of Australia [2000] FCA 279) Tamberlin J struck out the statement of claim on the basis that it did not disclose any cause of action known to law. At [8] his Honour said "… it would be vexatious and embarrassing to require the Bank to attempt to speculate as to the matters which it is required to meet". 88 His Honour made a costs order against the defendant, but permitted him leave to file fresh proceedings. In April 2000 Tamberlin J dismissed the defendant's further statement of claim, stating that the position in the fresh proceedings was even less clear. His Honour ultimately came to the view that the proceeding was "frivolous or vexatious and an abuse of process" (Croker v Commonwealth Bank of Australia [2000] FCA 488 at [20]). 89 In June 2000 the defendant filed a notice of motion in the Full Court of the Federal Court seeking to appeal the decision of Tamberlin J (Croker v Commonwealth Bank of Australia [2000] FCA 722). Beaumont, Matthews and Lehane JJ refused the defendant leave to appeal, noting that: "[11]… neither the (amended) statement of claim, nor any other of the documents filed by the appellant discloses a reasonable cause of action. [12] Moreover, the amount in dispute is in the order of $5000 and no special federal element appears to be involved here. In short, there is no reason why any proceedings could not have been commenced in the Local or District Court". 90 In February 2001 Gummow and Callinan JJ refused special leave to appeal from the decision of the Full Court of the Federal Court, noting that "no ground has been shown to attract the intervention of this Court in that dispute" (proceedings number S141/2000).

[41]

The Mobile Phone Proceedings 91 In March 2000 (at which time the tenancy, dental and credit proceedings were ongoing in the Supreme Court and the Federal Court) the defendant filed a statement of claim in the Federal Court against Phillips Electronics, Dick Smith Electronics and Telstra alleging a breach of s 82 of the Trade Practices Act 1974 (Cth). The statement of claim, which concerned the purchase of a single mobile telephone for $79, sought an award of damages of $100,000 and was pleaded as follows: "punitive; negligence; disappointment; equity; misrepresentation for; inconvenience for; interest; restitution; injured feelings (sic)". 92 In July 2000 Branson J (Croker v Philips Electronics Australia Ltd & Ors [2000] FCA 991) described the statement of claim as so defective that it would be embarrassing to require any respondent to answer it. She did, however, grant the defendant leave to amend the claim. In October 2000 (Croker v Philips Electronics & Ors [2000] FCA 1516) Branson J dismissed the amended statement of claim, noting at [12] that "… There are consumer tribunals and courts of limited jurisdiction which can hear and determine complaints of the type which the applicant wishes to advance in this proceeding. Indeed it appears that the applicant has already made two applications to the Fair Trading Tribunal of New South Wales arising out of his purchase of the mobile telephone. The parties have already been before the Court on this proceeding on six occasions. No doubt the costs of the respondents are mounting. Court time is being taken up with little, if any, commensurate public benefit. The applicant has had two opportunities to plead his case and has not been able to do so in an acceptable way…" 93 In November 2000 the defendant sought an extension of time to seek leave to appeal the decision of Branson J. Stone J refused the motion on the basis that the defendant had not provided a sufficient basis as to why time should be extended and ordered the defendant to pay the costs of the motion (Croker v Philips Electronics & Ors [2000] FCA 1731). In December 2000 the defendant sought leave to appeal to the Full Federal Court. Madgwick J held that because Stone J was exercising the appellate jurisdiction of the Court when refusing to extend time, the appeal was incompetent (Croker v Philips Electronics & Ors [2000] FCA 1935). In November 2001 Kirby and Hayne JJ refused to grant special leave to appeal, commenting that if the defendant did have a legitimate cause of action he could commence fresh proceedings in an appropriate forum (proceedings number S34/01, S35/01). 94 In November 2002 the defendant sought leave to file a fresh application in the Federal Court against the same three respondents in respect of the mobile phone, this time seeking compensatory, exemplary and nominal damages of $3 million. Sackville J directed the Registrar to refuse to accept the documents for filing (Croker v Philips Electronics & Ors [2002] FCA 1393). His Honour said: "[8]… The affidavit does not make clear either the material facts or the causes of action upon which the applicant intends to rely against the respondents… [9]… The applicant does not make the proceedings suitable for determination in this Court simply by arbitrarily selecting the figure of $3 million as the appropriate compensation for a complaint arising out of a consumer transaction involving the purchase of a telephone. [10] In my view these proceedings are an abuse of process of the Court, or alternatively, frivolous or vexatious…" 95 Later in November 2002, the defendant sought leave to appeal from Sackville J's directions to the Registrar and for orders that the Registrar be directed to accept his application and supporting affidavit (Croker v Philips Electronics & Ors [2002] FCA 1454). Giles J referred the defendant's motion to the Full Court for consideration of the question whether a direction by a judge at first instance has the character of a judgment from which an appeal lies. In March 2003 Lee, Whitlam and Jacobson JJ refused leave to appeal from the interlocutory decision of Sackville J, being of the view that it constituted a direction and was not subject to appeal (see reasons stated in Bizuneh v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 42; Croker v Philips Electronics & Ors [2003] FCAFC 43). (This was not relied upon by the plaintiff as a vexatious proceeding.) 96 In November 2003 the defendant commenced proceedings in the CTTT (Croker v Hutchinson 3G Australia Pty Ltd and NEC Australia Pty Ltd proceedings number GEN03/50189) alleging that a (second) mobile phone he purchased from Hutchinson 3G Australia was not fit for the purpose because of poor network coverage and because an error message appeared on the handset. NEC Australia Pty Ltd was joined as manufacturer of the handset. The defendant claimed $25,000 in damages for: "… loss of use of amenitie (sic), humiliation, embarrassment, loss of reputation, mental anguish and injury, stress and depression…". 97 In August 2004 Tribunal Member O'Keefe ordered that the defendant's service agreement with Hutchinson be terminated and that the respondents jointly pay him $262, on the basis that the mobile phone was not fit for its purpose within the meaning of s 19 of the Sale of Goods Act 1923. However, he ordered the defendant to pay the respondents' costs. In respect of the claim for damages Member O'Keefe observed that "… the applicant failed to articulate any rational basis for this claim either in law or in fact … Such claim for '$25 000' is not merely misconceived but fanciful … and having put the respondents to some obvious costs, it is just and equitable to allow the respondents their costs of the hearing day". 98 In November 2004 the defendant attempted to renew the CTTT proceedings, alleging that the service agreement had not been terminated as ordered, and seeking an additional $5000 in damages and an order for costs (Croker v Hutchinson 3G proceedings number 04/53930). The application was dismissed. (However, while the fresh CTTT proceedings were not relied upon as vexatious proceedings, the defendant's appeal to this Court from that decision is so.) 99 In April 2005 (Croker v Hutchinson 3G proceedings number 30012/05) Assistant Registrar Howe ordered the defendant to provide $10,000 as security for costs and ordered that the proceedings be stayed until security in that amount was provided. In July 2005 Malpass AsJ dismissed the defendant's motion seeking to discharge the whole of Registrar Howe's orders, describing the proceedings as "just another incidence of him [the defendant] litigating hopeless proceedings with no intention to satisfy any costs orders that may be made against him" (Croker v Hutchinson 3G [2005] NSWSC 733). 100 In September 2005 Latham J dismissed the appeal from Malpass AsJ's decision, noting that the proceedings were "hopeless…[with] no reasonable prospects of success" (Croker v Hutchinson 3G [2005] NSWSC 1242).

[43]

The Jewellery Proceedings 103 In March 2002 (at which time the defendant was instituting proceedings in the Court of Appeal challenging the costs order made in favour of the Commissioner of Taxation in the tenancy proceedings) the defendant commenced proceedings in the CTTT against Angus & Coote claiming that they damaged four gold rings that he brought into their store for the purpose of a remodelling quotation. He sought $2000 in damages plus costs. The Tribunal found they had no jurisdiction on the basis that the quote was provided free of charge. Even were they in error, the Tribunal held that the applicant had failed to prove, on the balance of probabilities, that the rings were damaged whilst in the respondent's possession (Croker v Angus & Coote (Holdings) Ltd [2002] NSWCTTT 186). In June 2002 the Tribunal refused the defendant's application for a rehearing (Croker v Angus & Coote proceedings number GEN02/24164). 104 In July 2002, the defendant appealed to this Court from the Tribunal's original decision and then subsequent refusal to permit a rehearing of the matter. He also sought an additional $100,000 in damages. Newman AJ found that the Tribunal's reasoning as to jurisdiction was wrong but dismissed the appeal on the basis that it would have failed on evidential grounds. In dismissing the appeal from the Tribunal's refusal to permit a rehearing of the question, Newman AJ found that there was no error of law (Croker v Angus & Coote proceedings number 11872/02). (Again, while the proceedings before the CTTT and before this Court were not relied upon as vexatious proceedings, the subsequent appeal to the Court of Appeal was relied upon.) 105 In March 2003 the defendant filed a notice of appeal to the Court of Appeal (Croker v Angus & Coote proceedings number CA41186/02) without seeking leave, which the Registrar dismissed as incompetent. In May 2003 Santow JA determined that the Registrar was correct to dismiss the appeal, and dismissed the defendant's motion to set aside the Registrar's orders. In July 2003 Hodgson, Ipp and Tobias JJA upheld Santow JA's decision, dismissing the defendant's motion with costs.

[44]

The Discrimination Proceedings 106 In February 2003 the defendant instituted proceedings in the Federal Court alleging that Sydney Institute of TAFE and University of Technology Sydney had breached the Disability Discrimination Act 1992 (Cth). The proceedings were transferred to the Federal Magistrates Court. 107 The defendant's claim followed a number of unsuccessful attempts to enrol in the LLB course at University of Technology Sydney, which he claimed to be the result of a failure by TAFE to take appropriate steps to provide him with sufficient support that would allow him to pass the courses he failed. His disability was described as a repetitive strain injury and tinnitus he sustained in 1989 arising out of his work in the meat and allied trade industry. By way of relief he sought an apology from the respondents, a place in the LLB/BB course at UTS and $1 million damages. Raphael FCM was satisfied that the defendant lacked an understanding of the requirements of the Disability Discrimination Act so far as proof of discrimination was concerned and, as such, his claim was not a claim that he was discriminated against, but rather a claim that he was not provided with some form of positive discrimination. The Magistrate dismissed the application against both respondents (Croker v State of NSW & Anor [2003] FMCA 181). In May 2003 the defendant sought leave to appeal from that decision. 108 In September 2003 in the Federal Court Bennett J found that the defendant's use of the Darlinghurst Post Office as his address for service did not comply with the Federal Court Rules. Her Honour also ordered the defendant to provide security for costs of $5000 (Croker v Sydney Institute of TAFE (State of NSW) [2003] FCA 942). In October 2003 Emmett J dismissed the defendant's notice of motion for an order setting aside Bennett J's decision (Croker v Sydney Institute of TAFE (State of NSW) [2003] FCA 1159). In August 2005 the defendant sought special leave to appeal from the decision of Emmett J, which he claimed was in breach of the rules of natural justice, the Constitution, the Covenant on Civil and Political Rights 1966 (UN) and the Declaration of Human Rights 1948 (UN). McHugh and Heydon JJ refused special leave, noting that there were no prospects of success on appeal ([2005] HCA Trans 505). 109 In January 2009 the defendant instituted proceedings in the Federal Court under the Human Rights and Equal Opportunity Commission Act 1986 (Cth) alleging unlawful discrimination by the State of NSW, Department of Education and Training. 110 In March 2009 Emmett J dismissed the application, as the proceedings had no prospect of success (Croker v Department of Education and Training (NSW) [2009] FCA 350). In April 2009 Emmett J granted the respondent's request for a costs order in a lump sum so as to avoid incurring further unnecessary costs and expenses involved in the preparation of a bill for taxation (Croker v Department of Education and Training (NSW)(No 2) [2009] FCA 351). In April 2009 Buchanan J dismissed the defendant's application for leave to appeal against Emmett J's decision (Croker v Department of Education and Training (NSW) [2009] FCA 431). In September 2009 Edmonds J refused the defendant's request for an extension of time to commence proceedings against the TAFE Commission (Croker v TAFE Commission [2009] FCA 1024).

[47]

114 In August 1999 the defendant instituted proceedings in the Federal Court against the Department of Social Security claiming $140,000 for "damages in equity, explanatory (sic); pecuniary; interest; out of pocket expenses". Sackville J struck out the statement of claim as disclosing no reasonable cause of action, but permitted the defendant leave to file an amended statement of claim (Croker v Department of Families and Community Services [2000] FCA 269). In July 2000 Sackville J found that the amended statement of claim was in substantially the same form as the original application, save for the fact that it added the Commonwealth of Australia as respondent. His Honour struck out the amended statement of claim, adding that there would be no useful purpose served by granting leave to file a third version of the statement of claim (Croker v Department of Families and Community Services [2000] FCA 883). 115 In August 2000 the defendant sought leave to appeal from the interlocutory judgment of Sackville J in the Full Federal Court. Beaumont, Lehane and Conti JJ refused leave to appeal (Croker v Department of Families and Community Services [2000] FCA 1304), with Beaumont J noting at [10] that: "… It is clear beyond any argument that there is no basis for any claim for fiduciary duty in the present case; and no other cause of action known to common law or any claim in equity has emerged as even conceivably capable of being propounded on any reasonable basis". 116 In September 2000 Gleeson CJ and Callinan J refused special leave to appeal from the decision of the Full Federal Court (proceedings number S237/2000). On the hearing of the application, Callinan J asked the following question: "I suspect that the opportunity cost of you not getting $500 six months earlier might be about $5 or $10, and you want to take up the time of this Court and cost the taxpayers of Australia thousands and thousands of dollars in prosecuting a claim for that amount of money. Are you serious about this?".

[48]

The defendant responded "I am serious, your Honour". 117 In January 2006 the defendant commenced proceedings in the Social Security Appeals Tribunal ("the SSAT") after he was refused a Disability Support Pension on the basis that he did not satisfy the threshold impairment requirements. The SSAT conducted a de novo hearing into the question but did not find a higher impairment rating and refused the application. 118 In June 2006 the defendant applied to the Administrative Appeals Tribunal for an order staying the decision of the SSAT. The AAT dismissed the application (Re Croker and Department of Employment and Workplace Relations [2006] AATA 536). This proceeding is not relied upon by the plaintiff as a vexatious proceeding. In September 2008 the defendant appealed to the Federal Court, pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). Upon being satisfied that there was no error of law, Buchanan J dismissed the application with costs (Croker v Secretary, Department of Employment and Workplace Relations [2006] FCA 1257). In October 2006 the defendant sought leave to appeal from the decision of Buchanan J. Gyles J found that there was no reason to doubt the correctness of the decision of Buchanan J and dismissed the appeal with costs (Croker v Secretary, Department of Employment and Workplace Relations [2006] FCA 1447). 119 In April 2007 the AAT dismissed the defendant's appeal against the SSAT's decision to revoke his disability pension. The AAT reaffirmed the decision of the SSAT (Croker v Secretary, Department of Employment and Workplace Relations [2007] AATA 1224). While this is not relied upon as a vexatious proceeding, in October 2007 the defendant appealed to the Federal Court from the decision of the AAT, proceedings which the plaintiff does rely upon. Branson J dismissed the appeal (Croker v Secretary, Department of Employment and Workplace Relations [2007] FCA 1635). In March 2008 Emmett J dismissed the defendant's appeal from the order of Branson J dismissing the appeal from the AAT, and stayed the proceedings until the defendant provided security for costs in the sum of $3000 (Croker v Secretary, Department of Employment and Workplace Relations [2008] FCA 340). The Victims Compensation Proceeding

[49]

120 In January 2000 the defendant made an application for compensation in the Victims Compensation Tribunal (reference number W62998). This application was based on an incident he claimed to have happened outside a hotel in Surry Hills, where he reported having been drinking with two Austrian tourists when he was head butted and then further assaulted outside by a hotel employee. In September 1999 the compensation assessor determined that there was insufficient evidence to establish that the alleged act of violence occurred, there being no one in the area who could support the applicant's version of events (including the two Austrian tourists). (The plaintiff does not rely on the application to the Victims Compensation Tribunal as a vexatious proceeding, but does rely on the subsequent appeals.) In October 2000 the defendant appealed the Tribunal's decision, alleging breaches of the (now repealed) Justices Act 1902 and the Police Service Act 1990, and seeking $49,000 in damages. In March 2001 the Tribunal's Chairman dismissed the appeal and affirmed the decision of the assessor. 121 In April 2001 the defendant appealed to the District Court (proceedings number 3890/01) from the decision of the Tribunal affirming the decision of the assessor. In August 2001 Boyd-Boland ADCJ dismissed the appeal with costs, observing that the defendant had failed to demonstrate any error of law in the Tribunal's decision. 122 In November 2001 the defendant filed a summons in the Court of Appeal (proceedings number 40588/01) seeking leave to appeal from the District Court's decision and damages in the amount of $1.5 million. In the summons the defendant claimed that Boyd-Boland ADCJ had a conflict of interest, and that investigating police officers had unlawfully discriminated against him because of a personal interest they had in the outcome of the decision. Registrar Irwin dismissed the appeal as incompetent and made a costs order against him. The HREOC Proceedings 123 In November 1997 the defendant commenced proceedings in the AAT seeking to appeal the HREOC decision not to inquire into his complaint of disability discrimination. Senior Member Hallowes dismissed the appeal, it being beyond the jurisdiction of the AAT to review a HREOC decision (Croker v Human Rights and Equal Opportunity Commission [1998] AATA 160).

[51]

126 Ms Ward submitted that in reviewing the defendant's litigation history a number of patterns emerge, principal among them being that he repeatedly institutes proceedings to seek redress for some relatively minor wrong and when he is unsuccessful, doggedly persists with his claim in spite of the published reasons of various judicial or quasi judicial officers when the proceedings were dismissed or after appellate review in this Court, the Federal and the High Court 127 It has been demonstrated that each set of the primary proceedings in the categories to which I have referred in this judgment has spawned a plethora of collateral litigation with only a tangential connection to the original claim for redress which also became progressively elaborated in the course of appellate review. The clearest example of this is in the tenancy proceedings which gave rise to litigation against the Commissioner of Police and the Commissioner of Taxation in this Court and subsequently the High Court arising from subpoenas for production of documents that not only had no relevant bearing on the original complaint but which were pursued long after the substantive proceedings were finalised. A subpoena served on the Commissioner of Taxation in the tenancy proceedings also led to a protracted course of litigation over costs orders which in turn spawned another course of litigation as the Commissioner attempted to issue bankruptcy notices as a result of the defendant's failure or refusal to pay the costs ordered against him in the Federal Magistrates Court, the Federal Court and the High Court. The defendant then instituted proceedings against the Commissioner in defamation, under the Administrative Decisions (Judicial Review) Act and in a claim for damages in the Federal Court, each of which was dismissed. 128 It was submitted by the plaintiff that a very great number of proceedings brought against the Commissioners of Police and Taxation were either initiated or pursued (or both) without any reasonable grounds, and were conducted in a way so as to harass those whose attendance he was able to command by putting them to the expense of defending numerous baseless applications. That submission is borne out by the evidence. By way of example I need only cite the defamation proceedings against the Commissioner of Taxation which were said to arise from the defendant's name being published on the court website and in court lists. A further striking example involved the proceedings where a Deputy Registrar of the High Court was named as respondent in the Federal Court, against who prerogative relief was sought compelling the Deputy Registrar to set a date for hearing a special leave application and a $1 million plus damages claim. These proceedings generated a spin off set of proceedings concerning photocopying fees. Despite these proceedings being dismissed, the defendant again doggedly but unsuccessfully pursued the matter resulting in the inevitable unsuccessful application for special leave.

[58]

Legend of abbreviations contained in chronology

                                           Matters marked with an asterisk (*) are not relied upon by the plaintiff as vexatious proceedings

AAT Administrative Appeals Tribunal Asst Reg Assistant Registrar CTTT Consumer, Trader and Tenancy Tribunal DC District Court Dpty Reg Deputy Registrar DSP Disability Support Pension FCA Federal Court FCA Full Ct Full Court of the Federal Court FMC Federal Magistrates Court HCA High Court of Australia HREOC Human Rights and Equal Opportunity Commission LC Local Court NSWCA New South Wales Court of Appeal NSWSC New South Wales Supreme Court RTT Residential Tenancies Tribunal SSAT Social Security Appeals Tribunal Social Sec. Social Security Proceedings VCT Victims Compensation Tribunal Victim's Comp. Victims Compensation Proceeding

[59]

Date Forum Commenced *02/06/97 VCT Appeal to VCT. 28/11/97 AAT 26/10/98 LC Appeal to NSWSC. *11/11/98 VCT Appeal to DC. *20/11/98 RTT Applies to set aside. 15/12/98 DC Appeal to NSWSC. *17/12/98 RTT Appeal to NSWSC. Unknown NSWSC circa 01/99 *02/02/99 NSWSC Appeal to NSWCA. *02/02/99 NSWSC (Police subpoena) *05/03/99 DC Appeal to NSWCA. 09/04/99 NSWCA (ATO subpoena) 28/04/99 NSWCA (Police) 28/04/99 NSWCA 28/07/99 FCA 28/07/99 FCA Appeal to Full Ct FCA. 30/07/99 NSWSC Appeal to NSWCA. 27/08/99 FCA (Advance on DSP) 27/08/99 FCA The defendant seeks leave to appeal. *03/09/99 NSWSC Appeal to NSWCA. 24/09/99 NSWCA Giles JA dismisses *24/09/99 NSWCA 15/10/99 NSWCA Files motion 22/10/99 HCA (ATO subpoena) Unknown HCA (circa 99) *11/01/00 VCT Appeal to VCT Chairperson. 09/03/00 FCA 09/03/00 FCA Appeal to FCA Full Ct. Unknown FCA circa 04/00 Full Ct Unknown HCA circa 07/00 Unknown FCA circa 07/00 Full Ct 03/08/00 NSWCA Application for special leave. Tenancy 14/08/00 NSWSC Assessor) Unknown HCA circa 09/00 06/10/00 VCT Appeal to DC. Unknown FCT circa 11/00 Full Ct Unknown FCA circa 11/00 Full Ct 24/11/00 NSWSC (ATO - costs assessor) Unknown HCA circa 12/00 18/12/00 HCA Leads to FCA proceedings. 31/01/01 NSWSC (ATO) 24/04/01 NSWCA (ATO) 27/04/01 DC Appeal to NSWCA. Unknown NSWCA circa 08/01 Dental 08/10/01 FCA (Also separately 29/11/01 NSWCA *06/03/02 CTTT Applies for re-hearing. 11/06/02 FMC (ATO) *12/06/02 CTTT Appeal to NSWSC. *05/07/02 NSWSC Appeal to NSWCA. *08/07/02 FCA (ATO) *Unknown FCA circa 08/02 Full Ct Appeal from Unknown FCA circa mid 02 Full Ct Applies to vary order. Unknown FCA circa 10/02 Unknown FCA circa 11/02 Unknown FCA circa 11/02 *Unknown FCA circa 11/02 Full Ct 17/12/02 NSWCA The defendant Unknown FCA circa 2002 05/02/03 FMC Seeks leave to appeal to FCA. 18/02/03 FCA Full Ct *Unknown FCA circa 02/03 Full Ct The defendant *Unknown HCA circa 04/03 22/04/03 NSWCA The defendant 24/04/03 NSWSC (ATO) Unknown FCA circa 05/03 Full Ct 19/05/03 FCA Files motion to appeal to FCA. 06/06/03 NSWCA Unknown FCA circa 08/03 Full Ct 08/09/03 FCA Application for special leave. 24/11/03 NSWCA (ATO) 26/11/03 CTTT The defendant Unknown HCA circa 12/03 Unknown HCA circa 2003 Unknown HCA circa early 2004 Unknown HCA circa early 2004 Unknown CTTT circa 2004 03/05/04 FCA (ATO) 22/06/04 FCA (ATO) 02/07/04 CTTT *09/07/04 CTTT 17/09/04 CTTT Tribunal noted *10/11/04 CTTT Appeal to NSWSC *29/11/04 FCA (ATO) 08/12/04 NSWSC (Asst Reg) 10/02/05 NSWSC Appeal to NSWSC. 16/03/05 CTTT Applies for rehearing in CTTT. 30/03/05 CTTT Application for rehearing. 06/07/05 CTTT Appeal to NSWSC. *20/07/05 NSWSC 25/07/05 FCA (ATO) Unknown NSWSC circa 08/05 17/08/05 CTTT 07/12/05 HCA (Original jurisdiction) Unknown HCA circa 04/06 Unknown FCA circa 05/06 *Unknown AAT circa 05/06 *Unknown AAT circa 05/06 Unknown circa mid 06 FCA (Substantive) Unknown FCA circa 07/06 Unknown FCT circa 10/06 Full Ct 19/12/06 FCA 06/02/07 Appeal to FCA. Unknown FCA circa 04/07 *Unknown FCA circa 05/07 Unknown FMC circa 06/07 Unknown FCA circa 09/07 04/12/07 FCA Appeal to FCA Full Ct. *Unknown AAT circa late 2007 *Unknown FCA circa 02/08 *Unknown AAT circa 02/08 22/02/08 FCA Full Ct Unknown FCA circa 04/08 Full Ct *Unknown FCA circa 07/08 Full Ct 14/08/08 FCA Seeks leave to appeal to FCA Full Ct. Unknown FCA circa 10/08 Full Ct Unknown DC circa 01/09 (Balla DCJ) 05/01/09 FCA Seeks leave to appeal to FCA Full Ct. 05/01/09 FCA (ATO) 03/03/09 AAT 19/03/09 FCA (ATO) Unknown FCA circa 03/09 07/04/09 FCA Full Ct 26/05/09 FCA Subject (proceedings) Date Outcome Determined Victim's Comp. 14/08/98 Dismissed by compensation assessor. HREOC 18/02/98 Dismissed. Detinue 27/07/99 Defendant ordered to attend Ewan premises and collect goods. Victim's Comp. 10/02/99 Dismissed by Tribunal. Tenancy 04/12/98 No jurisdiction. Dental 06/08/99 Dismissed. Tenancy 18/12/98 No ground to set aside. Tenancy 03/99 Dismissed. Appeal to NSWCA. Tenancy (ATO subpoena) 01/04/99 Dismissed. Tenancy 20/04/99 Subpoena set aside. Appeal to NSWCA. Victim's Comp. 07/09/99 Leave to appeal granted but appeal dismissed. Tenancy 27/09/99 Dismissed. Application for special leave. Tenancy 23/11/99 Dismissed. Application for special leave. Tenancy 27/04/00 Dismissed. Credit 02/03/00 Statement of claim struck out, leave granted to re-plead. Credit (Following leave to re-plead) 10/04/00 Dismissed. Detinue 20/09/99 Dismissed. Social Sec. 02/03/00 Leave to file amended application and statement of claim. Social Sec (Advance on DSP) 03/07/00 Amended application dismissed. Dental 05/10/99 Dismissed. Detinue 07/08/00 Registrar orders the defendant to provide address for service. review of Registrar's directions. Appeal dismissed as incompetent. Victim's Comp. 14/08/00 Dismissed. Dental 20/07/00 Dismissed. seeking further review in NSWCA. Tenancy 17/03/00 Special leave refused. Tenancy 26/05/00 Special leave refused. (Police) Victim's Comp. 07/09/00 Refused. Mobile phone 17/07/00 Statement of claim struck out, but granted leave to amend. Mobile phone 19/10/00 Dismissed. Credit 06/06/00 Dismissed. Application for special leave. Credit 20/02/01 Application for special leave refused. Social Sec (Advance on DSP) 29/08/00 Leave refused. Seeks special leave. Dental 23/11/00 Dismissed. Costs order in favour ATO. (ATO - costs 02/11/00 Applies for review. Social Sec. (Advance on DSP) 14/09/01 Special leave refused. Victim's Comp. 06/03/01 Dismissed. Mobile phone 22/11/00 Dismissed. Seeks further appeal to FCA Full Ct. Mobile phone 07/12/00 Dismissed. Application for special leave. Tenancy 17/1/01 Out of time. Appeal to NSWSC. Mobile phone 20/11/01 Special leave refused. Dental 14/09/01 Deemed abandoned. Tenancy 21/03/01 Dismissed. Appeal to NSWCA. Tenancy 23/11/01 Dismissed. Files motion in FCA Full Ct. Victim's Comp. 02/08/01 Dismissed. Victim's Comp. 04/02/02 Dismissed. Dismissed. (Dpty Reg HCA) 03/02/03 Appeal to FCA Full Ct on substantive matter appeals interlocutory orders re photocopying costs). Tenancy (ATO) 25/02/02 Dismissed by consent. Jewellery 15/05/02 Dismissed. Tenancy 25/06/02 Dismissed. Appeal to FCA Jewellery 20/06/02 Dismissed. Jewellery 19/11/02 Tribunal erred as to jurisdiction but appeal dismissed on merits. Tenancy 18/09/02 Dismissed. Appeal to FCA Full Ct. Tenancy 25/02/03 The defendant successfully appeals from judgment of Moore J. Order made setting aside the bankruptcy notice. (ATO) interlocutory orders re photocopying. Dental 04/10/02 Adjourned until the defendant can demonstrate need for photocopying. (Dpty Reg HCA) Ultimately dismissed but order for dismissal suspended to give the defendant an opportunity to apply to vary the order. Dental 28/10/02 Dismissed. (Dpty Reg HCA) Mobile phone 12/11/02 Registrar directed to refuse to accept documents for filing. Appeal to FCA Full Ct. Mobile phone 22/11/02 Notice of motion seeking leave to appeal from 'judgment' of Sackville J. Referred to FCA Full Ct. Mobile phone 13/03/03 Dismissed. Jewellery 28/03/03 Dismissed as incompetent by Registrar. files motion to set aside. Tenancy 12/11/02 Dismissed. (ATO) Application for special leave. Discrimination 19/05/03 Summary dismissal. Dental 15/05/03 Appeal stayed until security provided. (Dpty Reg HCA) Tenancy Motion for costs after successful on appeal. (ATO) 27/03/03 Motion dismissed. files application for special leave. Tenancy 12/12/03 Special leave refused. (ATO) Jewellery 26/05/03 Dismissed. files motion seeking leave to appeal. Tenancy 28/10/03 Dismissed. Appeal to NSWCA. Dental (Dpty Reg HCA) 02/07/03 Dismissed. Further appeal. Discrimination 08/09/03 Ordered to provide security for costs. Jewellery 16/07/03 Motion seeking leave dismissed. Dental (Dpty Reg HCA) 01/12/03 Dismissed. Application for special leave. Discrimination 07/10/03 Dismissed. Tenancy 04/06/04 Dismissed. Application for special leave. Mobile phone 27/08/04 Agreement terminated. to pay costs of day hearing. Dental (Dpty Reg HCA) 05/08/05 Special leave refused. Tenancy 12/12/03 Special leave refused. (ATO) Tenancy 10/03/05 Special leave refused. (ATO) Discrimination 05/08/05 Special leave refused. Mobile phone 25/11/04 Dismissed. Appeal to NSWSC. Tenancy 03/06/04 Dismissed. Appeal to FCA Full Ct. Tenancy 03/08/04 Dismissed. Cufflinks 06/08/04 Discontinued and withdrawn. Misc. 28/07/04 Respondent ordered to pay the defendant $100. Misc. 11/10/04 Respondent ordered to pay the defendant $54. that a letter of demand might have resulted in a refund. Mobile phone 27/01/05 Dismissed. Tenancy 24/02/05 Dismissed. Mobile phone 22/05/05 Security for costs ordered. Appeal to NSWSC Mobile phone 28/07/05 Dismissed. Cufflinks 09/06/05 Dismissed on the basis of no jurisdiction. Credit Card 28/05/05 Dismissed. Cufflinks 08/07/05 Dismissed. Cufflinks 05/10/05 Dismissed. Tenancy 06/04/06 Dismissed. Appeal to FCA Full Ct. Mobile phone 09/09/05 Dismissed. Credit card 18/08/05 Dismissed. Cufflinks 01/03/06 Dismissed. Appeal to HCA. Cufflinks 09/11/06 Dismissed. Tenancy 08/06/06 Dismissed. (ATO) Social Sec. (DSP) 13/06/06 Some prospects of success on substantive appeal but not prepared to grant stay. (Interlocutory) Appealed to FCA. Social Sec. (DSP) 13/04/07 Decision under review affirmed. (Substantive) Appealed to FCA. Social Sec. Appeal dismissed. (DSP) 30/10/07 Appeals to Full Ct FCA. Social Sec. (DSP) 22/09/06 Dismissed. (Interlocutory) Seeks leave to appeal to FCA Full Ct. Social Sec. (DSP) 27/10/06 Application for leave to appeal dismissed. (Interlocutory) Cufflinks 06/02/07 Transferred to FMC. FMC (On transfer from FCT) Cufflinks 23/03/07 Defendant ordered to produce documents re financial resources and costs orders made against him. Cufflinks 24/05/07 Leave refused. Social Sec (DSP) 30/10/07 Dismissed. (Substantive) Appeal to FCA Full Ct. Cufflinks 14/08/07 The defendant ordered to provide security for costs. Application for stay dismissed. Appeal to FCA. Cufflinks 17/10/07 Dismissed. Cufflinks 08/04/08 Dismissed. Social Sec (Entry payment) 29/01/08 Refused. Appeal to FCA. Social Sec (Entry payment) 27/06/08 Dismissed. Seeks leave to appeal to FCA Full Ct. Social Sec (Maxnetwork) 21/07/08 Refused. Appeal to FCA. Social Sec (DSP) 06/03/08 Stayed until security for costs provided. (Substantive) Cufflinks 20/05/08 Dismissed. Order restricting further proceedings re cufflinks. Social Sec (Entry payment) 08/09/08 Leave refused. Social Sec (Maxnetwork) 25/09/08 Notice of appeal dismissed. Social Sec (Maxnetwork) 24/10/08 Leave to appeal refused. Cufflinks (Costs Assessor) 21/04/09 Dismissed. Discrimination 20/03/09 Summary dismissal. Tenancy 12/03/09 Dismissed. Appeal to FCA Full Court. Social Sec 15/01/10 Dismissed. Tenancy 08/04/09 Dismissed. Discrimination 01/04/09 Respondent seeks and obtains order for costs in a lump sum. Appeal to FCA Full Ct. Discrimination 30/04/09 Appeal from substantive matter and from order for lump sum costs. Dismissed. Discrimination 14/09/09 Dismissed.

Attorney General of New South Wales v Croker

At a glance

Court

Decision date

Before

Source

Judgment (60 paragraphs)

Parties

Legislation Cited (19)

Cases Cited (71)

Cited By (32)